Category Archives: standard non-parole periods

Standard non-parole periods: life after Muldrock

 

In Atchison v R [2012] NSWCCA 82 the NSW Court of Criminal Appeal (CCA) was asked to consider whether a trial judge had fallen into error in sentencing the offender for an offence to which a standard non-parole period applies. The trial judge’s decision was made before the High Court handed down it’s decision in Muldrock.

 

The offender was convicted of wounding with intent to cause GBH under s33(1)(a) of the Crimes Act 1900 and sentenced to nine years imprisonment with a non-parole period of six years. Under the Crimes (Sentencing Procedure) Act, a standard non-parole period of 7 years applies to the offence.

 

In applying the principles in R v Way the trial judge found that the circumstances of the offence meant that it fell within the mid-range of objective seriousness, which he noted was “not to be any narrow band“. The judge also found that there were special circumstances for departing from that standard and ruled accordingly.

 

The complaint on appeal was that by adopting the process of the CCA in Way, which was the prevailing standard at that moment, the judge:

 

“…departed from the standard non-parole period only to the limited extent necessary to give effect to the finding of special circumstances.”

 

This was said to be a mistake because of what the High Court said in Muldrock at [25]:

“The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness.”

Blanch J (with the concurrence of Basten JA and Hall J) agreed with the applicant’s submission and found that instead, the standard non-parole period should have been placed along-side the maximum penalty and other factors, both mitigating and aggravating, before determining the appropriate sentence.

 

His Honour then undertook this process and ruled that the non-parole period of the sentence should be reduced to four years and six months.

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R v Muldrock – the High Court takes back some territory on sentencing

Last year’s High Court decision in R v Muldrock shifted the sands of judicial reasoning on standard non-parole periods considerably and represents another interesting chapter in the ongoing struggle between the legislature and judiciary on sentencing.

 

When the Carr Government introduced the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill to the Legislative Assembly in late 2008 the Opposition were calling for a strict regime of mandatory sentencing. The Bill was too soft, they shouted.

Meanwhile, leaflets were being handed out at train stations claiming “Bob Carr is tough on crime. These are our minimum sentences.”

Once again the highly complex issue of sentencing was being politicised.

 

Sections 54A to 54D

 

Eventually, the Bill that Mr Debus announced in his Second Reading Speech was “aimed at promoting consistency and transparency in sentencing” by providing a “reference point or benchmark” was passed. It became Division 1A of the Crimes (Sentencing Procedure) Act 1999.

Sections 54A and 54B and their accompanying Table, set out a means by which a court can determine the appropriate custodial term for certain serious crimes. It does so by reference to a suggested term applicable to a hypothetical offence in the mid-range of objective seriousness. Whether a particular offence can be so categorised is to be determined by the trial judge by reference to the common law.

Should the judge think it appropriate to depart from the standard term prescribed in the Table, proper reasons should be provided for doing so by making particular reference to the aggravating and mitigating factors set out in section 21A of the Crimes (Sentencing Procedure) Act 1999.

R v Way

Exactly how these new provisions were to be incorporated into the well-established process of instinctive synthesis in sentencing was also left unclear until the decision in NSW Court of Criminal Appeal (CCA) in R v Way [2004] NSWCCA 131.

The CCA provided some much needed guidance by saying that the sentencing court in a particular case must start by asking and answering the question “are there reasons for not imposing the standard non-parole period”. This necessarily involves an assessment of the offence in question to determine how near or far it is to the hypothetical mid-range.

However, the current High Court does not agree.

Muldrock’s Case

The appellant Mr Muldrock is a mentally retarded man convicted of various child sex offences. In sentencing him, the extent and effect of Mr Muldrock’s mental retardation was in issue. The sentencing judge prescribed a very short non-parole period, which was backdated. This approach was taken because Mr Muldrock was assessed as eligible for admission to a special care facility designed to assist offenders with similar difficulties.

This sentence was appealed and the NSW Court of Appeal found the non-parole period should have been a lengthier six years and eight months. The proceedings then found their way to the High Court.

The High Court at [31] found that the prescribed standard non-parole was much less than a starting point for a sentencing judge’s reasoning. Instead, they said it should simply be added to the variety of factors (both aggravating and mitigating) to which the judge should give consideration before determining what is an appropriate sentence.

The Status Quo is returned

On its face, it could be said that the High Court perhaps watered down the amending legislation. But as Bob Debus also pointed out in his second reading speech “a fair and just criminal system requires sentences imposed be appropriate to the offence and the offender requiring the exercise of complex judicial discretion”.

This, it would seem, is exactly what the High Court has ensured.

 

 

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